State of Washington v. Mark Edward Cockrum ( 2016 )

FILED
JUNE 30, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 33875-4-111
Respondent, )
)
V. )
)
MARKE. COCKRUM, ) UNPUBLISHED OPINION
)
Appellant. )
)
FEARING, C.J. -Mark Cockrum was convicted in 2015 by a Kittitas County jury
of two counts of delivery of methamphetamine and one count of possessing
methamphetamine. He contends on appeal that the jury instruction on reasonable doubt,
which defines reasonable doubt as "one for which a reason exists," is unconstitutional
because it shifts the burden of proof and requires the jury to articulate a reason. He also
challenges the sufficiency of the evidence to support his convictions and contends he had
ineffective assistance of counsel. We hold, as we have in many recent decisions, that the
reasonable doubt instruction is not erroneous since it is a standard instruction approved
by the state Supreme Court. We also conclude that the evidence is sufficient to support
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Cockrums' convictions and that he fails to show ineffective assistance of counsel. Thus,
we affirm the convictions.
FACTS
In May 2015, two Kittitas County detectives visited Steven King in the county jail
after law enforcement arrested King for driving with a suspended license. The detectives
agreed to talk with the county prosecutor about dropping the charges if King assisted in
controlled drug buys. King offered to buy methamphetamine from Mark Cockrum, one
of his regular suppliers.
The detectives arranged for Steven King's release from jail, strip-searched him,
gave him money, and left him a few blocks from Mark Cockrum's trailer. The detectives
placed no surveillance device on King. Two additional officers in an unmarked car near
the trailer watched as King walked into the trailer park. Trees obstructed the additional
officers' view of the door of the trailer, so the two did not see King enter Cockrum's
trailer.
Steven King testified at trial that three men occupied Mark Cockrum' s trailer
when he entered. He purchased the methamphetamine from Cockrum, then returned to
the block where the detectives left him. The detectives picked up King, retrieved the
methamphetamine, and again strip-searched King.
Steven King offered to return to the Mark Cockrum trailer for a second purchase.
The detectives handed King more money, then dropped him off within walking distance
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of Cockrum's trailer. According to King, five individuals occupied the trailer during his
second visit. He bought methamphetamine solely from Cockrum. When officers later
arrested Cockrum, they found a bag of methamphetamine in his sock.
PROCEDURE
The State of Washington charged Mark Cockrum with two counts of delivery of
methamphetamine and one count of possession of methamphetamine. At trial, the court
instructed the jury on reasonable doubt:
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless you find during your deliberations that it
has been overcome by the evidence beyond a reasonable doubt.
A reasonable doubt is one for which a reason exists and may arise
from the evidence or lack of evidence. It is such a doubt as would exist in
the mind of a reasonable person after fully, fairly, and carefully considering
all of the evidence or lack of evidence. If, from such consideration, you
have an abiding belief in the truth of the charge, you are satisfied beyond a
reasonable doubt.
Clerk's Papers (CP) at 16. Cockrum did not object to this instruction. The jury found
him guilty as charged.
LAW AND ANALYSIS
Reasonable Doubt Instruction
Mark Cockrum challenges the reasonable doubt instruction. We review a
challenge to the language of a jury instruction de novo, in the context of the instructions
as a whole. State v. Bennett, 161 Wash. 2d 303, 307, 165 P.3d 1241 (2007); In re Pers.
Restraint of Hegney, 138 Wash. App. 511, 521, 158 P.3d 1193 (2007). Jury instructions are
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upheld on appeal if they allow the parties to argue their theories of the case, do not
mislead the jury, and properly inform the jury of the applicable law. State v. Bennett, 161
Wash. 2d at 307.
The trial court took the reasonable doubt jury instruction nearly verbatim from
WPIC 4.01. See WPIC 4.01 at 85. Mark Cockrum argues that the language in WPIC
4.01, that defines a reasonable doubt as "one for which a reason exists," informs jurors
that the jury must articulate a reason for having a reasonable doubt in order to acquit the
accused. WPIC 4.01 at 85 (emphasis added). Thus, he contends, jurors must have more
than just a reasonable doubt; they must be able to articulate that doubt. Cockrum also
challenges the language describing reasonable doubt as the abiding belief "in the truth of
the charge," which he insists is a misstatement of the burden of proof. CP at 16.
We note that Mark Cockrum never objected to the propriety of the reasonable
doubt instruction at trial. A defendant generally waives the right to appeal an error unless
he or she raised an objection at trial. State v. Kalebaugh, 183 Wash. 2d 578, 583, 355 P.3d
253 (2015). One exception to this rule is made for manifest errors affecting a
constitutional right. RAP 2.5(a)(3); Kalebaugh, 183 Wash. 2d at 583. Cockrum claims an
error of constitutional magnitude, but he shows no error.
Washington courts have approved the language ofWPIC 4.01 as constitutionally
sound. As noted in State v. Thompson, 13 Wash. App. 1, 533 P.2d 395 (1975), the phrase
"a doubt for which a reason exists"
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does not direct the jury to assign a reason for their doubts, but
merely points out that their doubts must be based on reason, and not
something vague or imaginary. A phrase in this context has been declared
satisfactory in this jurisdiction for over 70 years.
Thompson, 13 Wn. App at 5 (citing State v. Harras, 25 Wash. 416, 65 P. 774 (1901)).
Likewise, Washington's traditional "abiding belief in the truth" language has been upheld
by the state high court. State v. Pirtle, 127 Wash. 2d 628, 657-58, 904 P.2d 245 (1995).
The Washington Supreme Court has consistently endorsed the language ofWPIC 4.01.
State v. Emery, 174 Wash. 2d 741, 759-60, 278 P.3d 653 (2012); State v. Bennett, 161
Wash. 2d 303,318 (2007).
Most recently, the Washington Supreme Court, in State v. Kalebaugh, 183 Wash. 2d
578, 583, 355 P.3d 253 (2015), reaffirmed that WPIC 4.01 was the correct legal
instruction on reasonable doubt. The trial judge in Kalebaugh gave a proper instruction
from WPIC 4.01 in his preliminary remarks to prospective jurors, but then attempted to
further explain that reasonable doubt was "' a doubt for which a reason can be given.'"
State v. Kalebaugh, 183 Wash. 2d at 585 (emphasis by Supreme Court). The Supreme
Court disfavored the judge's "offhand explanation," in part because that language
suggested that a reason must be given to doubt the defendant's guilt. The error was held
harmless, however, because the trial judge properly instructed the jury at the end of the
case with the language of WPIC 4.01.
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We reject Mark Cockrum's assertion that WPIC 4.01 is similar to the "fill-in-the-
blank" prosecutorial argument held improper in State v. Emery, 174 Wash. 2d at 759-60.
The prosecutor in Emery told the jury in closing argument that "' in order for you to find
the defendant not guilty, ... you'd have to say, quote, I doubt the defendant is guilty, and
my reason is blank. A doubt for which a reason exists. If you think you have a doubt,
you must fill in that blank.'" State v. Emery, 174 Wash. 2d at 750-51. This statement was
inappropriate because it subtly shifted the burden of proving the case to the defendant to
disprove. The prosecutor's improper and potentially confusing statement did not support
relief, however. Emery concluded that even if the appellants could show that the
statement was incurable, they could not show a substantial likelihood that it affected the
jury's verdict. The jury was properly instructed on reasonable doubt with a WPIC 4.01
instruction.
Sufficiency of the Evidence
In his pro se statement of additional grounds for review, Mark Cockrum contends
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that the State failed to provide sufficient evidence that he committed the two deliveries of
methamphetamine. He asserts that Steven King is an unreliable informant whose
testimony was unsupported by marked sale money, audio recordings of the sales, or video
surveillance. Cockrum further contends that, because numerous people were in his trailer
during the drug sales, any one of them could have sold the methamphetamine to King.
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The State must prove all elements of an offense beyond a reasonable doubt. State
v. Rich, 184 Wash. 2d at 903. To determine whether the evidence is sufficient to support
each element, we review the evidence in the light most favorable to the State. State v.
Rich, 184 Wash. 2d at 903;State v. Larson, 184 Wash. 2d 843, 854-55, 365 P.3d 740 (2016).
This evidence may be either direct or circumstantial, and one type of evidence is no more
or less trustworthy than the other. State v. Rangel-Reyes, 119 Wn. App. 494,499, 81
P.3d 157 (2003). Issues of conflicting testimony, the credibility of the witnesses, and the
persuasiveness of the evidence are left to the jury. State v. Andy, 182 Wash. 2d 294, 303,
340 P .3d 840 (2014 ). We will uphold a conviction if any rational trier of fact could have
found the essential elements beyond a reasonable doubt. Larson, 184 Wash. 2d at 855.
The State charged Mark Cockrum with delivery of methamphetamine in violation
ofRCW 69.50.401, which reads: "it is unlawful for any person to manufacture, deliver,
or possess with intent to manufacture or deliver, a controlled substance." "Delivery" is
defined as "the actual or constructive transfer from one person to another of a substance."
RCW 69.50.lOl(g). Steven King testified that he bought methamphetamine twice from
Cockrum. King's girlfriend testified that she accompanied King in the past when he
bought drugs from Cockrum. Officers testified that they watched King walk toward
Cockrum's trailer, although they could not see him actually enter the trailer, and they saw
King return from the trailer with methamphetamine. This combination of direct and
circumstantial evidence, considered in the light most favorable to the State, sufficiently f
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supports each element of the charges of delivery of a controlled substance.
Effectiveness of Counsel
In the second of his pro se issues, Mark Cockrum contends he had ineffective
assistance of counsel. To prevail, he must show, with a preponderance of the evidence,
that his counsel's performance fell below an objective standard of reasonableness and
that the deficiency prejudiced him. Strickland v. Washington, 466 U.S. 668, 687-88, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). We strongly presume that counsel provided
effective assistance. State v. Reichenbach, 153 Wash. 2d 126, 130, 101 P.3d 80 (2004).
Mark Cockrum contends that he told trial counsel that the jail had an audio
recording of Steven King admitting that Cockrum was not the one who sold the
methamphetamine, but that counsel refused to obtain the recording. Cockrum' s
allegation, without support in the record, is insufficient to show that his counsel did not
properly investigate his case. Cockrum also claims that his counsel recently worked for
the prosecutor's office. Cockrum may allege that counsel had a conflict of interest.
These allegations are also not supported by the record and are insufficient in themselves
to show that defense counsel's performance fell below objective standards of
reasonableness. Strickland, 466 U.S. at 687-88.
CONCLUSION
We hold that Mr. Cockrum cannot show manifest error justifying review under
RAP 2.5(a)(3) of the unpreserved objection to the beyond reasonable doubt instruction
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based on WPIC 4.01. We also hold that the evidence supports his convictions and that he
fails to prove ineffective assistance of counsel.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
F eMing, ci
WE CONCUR:
K~
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